by Philip Dray
The Supreme Court would follow Lochner with other decisions made in the spirit of substantive due process, protecting employers from the regulatory power of legislatures to the extent that the decade after 1905 became known as “the Lochner era.” In Adair v. United States (1908), the Supreme Court struck down as unconstitutional that part of the Erdman Act banning yellow-dog contracts. The case originated when railroad official William Adair took exception to worker O. B. Coppage’s membership in a union and, in violation of Erdman, fired him. When the case came before the high court, the justices ruled that Congress had no authority to govern trade union membership or the employer’s right to contract for labor.47 Olney termed the Adair ruling “archaic,” objecting to its extension of due process rights to large business enterprises and noting that it represented “a long step back into the past—to conceive of and deal with the relations between the employer … and the employee as if the parties were individuals.”48 State statutes against yellow-dog contracts were overturned also in Coppage v. Kansas in 1915 and against minimum wage laws in Adkins v. Children’s Hospital in 1923.49
Labor’s tactic of mounting consumer boycotts also came under attack by the courts. The AFL, because of its large membership, had made effective use of this strategy, pressuring manufacturers by advising AFL members (and their families and friends) to refrain from purchasing certain goods. In retaliation, manufacturers started the American Anti-Boycott Association and sought injunctions against the practice. A determinative legal contest over boycotting, known as the Danbury Hatters Case, was fought tooth and nail in the lower courts before finally arriving at the Supreme Court in 1908. The saga had begun in 1902, when the United Hatters of North America attempted to unionize D. E. Loewe & Company of Danbury, Connecticut. The firm’s owner, Dietrich Loewe, refused to acknowledge or meet with union representatives, and the United Hatters struck. Loewe responded by hiring scabs to continue the manufacture of hats, while the union retaliated by obtaining a list of Loewe’s regular retail outlets and appealing to them not to carry Loewe’s products. The hatters also asked the AFL to put Loewe’s name on the “We Don’t Patronize” list, which ran in the AFL’s journal, the American Federationist. In Loewe v. Lawlor (1908), the Supreme Court ruled that the AFL’s boycott constituted a restraint of trade under the Sherman Act—a powerful ruling with dire meaning for labor, since neither the strike nor the boycott had physically interfered with Loewe’s business. The potential interpretation of the decision was that any work stoppage by employees could be held to have disrupted commerce, dangerously close to characterizing the routine functions of any labor union as illegal. Labor advocates were outraged that the court appeared willing to twist the intent of the Sherman Act in new and devious ways.
As disappointing as was the ruling, further claims by the plaintiff led to a lower court agreeing that, under the terms of Sherman, Loewe was entitled to collect triple financial damages from the members of the United Hatters local, to the point of attaching their individual bank accounts and threatening to foreclose on more than two hundred of the workers’ homes. This decision was upheld by the Supreme Court in 1915. The AFL, stunned and incredulous, agreed to pay the hatters’ fines, raising the money in two nationwide “Hatters Days” among AFL-affiliated unions, in which individual workers each donated an hour’s pay. The show of solidarity was reassuring, but the Danbury rulings were a crushing setback for labor in that they portended an era in which unions could not only lose the right to orchestrate boycotts but be made to pay dearly for using them, even to the point of bankruptcy.50
The AFL was also on the receiving end of a highly detrimental court decision in Gompers v. Buck’s Stove and Range Co. (1911). The case originated in 1906, when metal polishers at the St. Louis–based Buck’s Stove and Range Company went out on strike over the firm’s reneging on a nine-hour day that had been instituted in 1904. After the American Federationist instructed members not to buy Buck’s products, sales of the company’s wares fell sharply. Company president J. W. Van Cleave, who was active in two national pro-business groups, joined with the American Anti-Boycott Association to secure a court injunction against the boycott, one so broadly worded it prohibited the AFL from even publicizing the strike. When the AFL, which planned an appeal, did not act swiftly enough to remove Buck’s name from its published lists of boycotted products, the firm pursued a criminal contempt citation, which carried a potential punishment of a twelve-month jail sentence against Samuel Gompers and lesser sentences against John Mitchell (now an AFL vice president) and AFL secretary Frank Morrison. The Court of Appeals of the District of Columbia found the defendants guilty as charged.
Gompers, mortified by the possibility he could be sent to prison, demanded that Congress amend the Sherman Act so that it was no longer used against labor unions. Mitchell took a different tack, vowing noncooperation and declaring it “the duty of all patriotic and law-abiding citizens to resist, or at least to disregard, the injunction.” Rather than submit to such arbitrary misuse of the law, he said, “it is better that half the workingmen of the country remain constantly in jail.”51 Attorneys for the AFL contended that the First Amendment protected the boycott as a form of free speech, an argument that failed to gain traction with the court, although the criminal aspect of the case was eventually dropped, partly due to the statute of limitations. Neither Gompers nor any other AFL leader came close to a jailhouse door, but the highest court in the land had recognized that the property rights of business were to be safeguarded from product boycotts; this, and the fact that one of the most respected moderates in American labor had been threatened with a punishment usually reserved for radicals, sent a decided chill through the leadership of the nation’s unions.
To workers and reformers, all of these judicial roadblocks, as well as the ever-present threat of court injunction, had the cumulative effect of suggesting that something remained terribly wrong in capitalist society. “Outside the walls of the private enterprise,” writes historian Nelson Lichtenstein, “American political culture celebrated a Jeffersonian world of free speech, democratic participation, and masterless autonomy. But within the corporate world … autocracy, obedience, and social deference were the order of the day, bolstered by a century of legal precedent and legal practice.” In efforts to confront management on anything approaching equal terms, workers found themselves thwarted, with no rights of free speech or petition. The judiciary, by clinging “to an imaginary world of ‘free labor’ in which individual workers freely and equitably negotiated their pay and perks with those who hired them,” had created a striking inequity.52 The challenge to American workers, as Walter Reuther, a leader of the nation’s autoworkers beginning in the 1930s, would astutely observe, was “to save truly free enterprise from death at the hands of its self-appointed champions.”53
DESPITE THE ANTI-LABOR TREND of the judiciary in the period between Pullman and the First World War, state legislatures and Congress did manage to advance labor reforms. One issue that received legislative attention, no doubt because it so glaringly required regulation, was child labor, a cause hammered into the conscience of America by one of labor’s most colorfully outspoken characters, “Mother” Jones. In 1867 Mary Jones (née Harris) was living in Memphis with her husband, George Jones, a factory worker and member of William Sylvis’s International Iron Molders’ Union, when a yellow fever epidemic struck, taking the lives of George and all four of their children. After the molders’ union helped her bury her family, Jones went to Chicago, where she worked as a dressmaker and, with a partner, ran a small clothing business that was destroyed in the Chicago Fire of 1871. Remaining in her adopted city as it rebuilt, she became caught up in the fervor of the numerous labor crises of the next two decades—the railroad strike of 1877, the campaign for the eight-hour day, the Haymarket bombing and trial—and eventually joined the Knights of Labor. “Those were the days of sacrifice for the cause of labor,” she later said of the era. “Those were the days when we had no hall
, when there were no high salaried officers, no feasting with the enemies of labor. Those were the days of the martyrs and the saints.”54 In 1894 she joined Coxey’s Army, traveling with a band of men from Denver heading toward St. Louis en route to Washington. Here Jones came fully into her own—raising money, rallying morale, admonishing “her boys” to demand what they deserved and not be “cringing serfs.” She did not make it to Washington, but by the adventure’s end she had become a full-time itinerant labor agitator, and never had a permanent home again. “My address is like my shoes. It travels with me,” she once replied to a congressional committeeman who asked where she lived. “I abide where there is a fight against wrong.”55
One seemingly clear-cut fight against wrong grew out of her concern for the lack of federal child labor laws. “Breaker boys” as young as six and seven sat all day at the mouths of coal mines sorting anthracite from shale; little girls tended spools in textile mills. They were paid a pittance and denied an education. Such facts prompted her in 1903 to lead a group of striking underage textile workers from Pennsylvania to the Oyster Bay, Long Island, home of President Theodore Roosevelt.56 The Liberty Bell from Independence Hall in Philadelphia was at the time on a cross-country rail tour, drawing huge crowds, and Jones, noting that “these little children were striking for some of the freedom that childhood ought to have,” decided they, too, should go before the public, for “these little toilers, deformed, dwarfed in body, soul, and morality,” had “nothing but toil before them and no chance for schooling.”57 At seventy-three years of age, no more than five feet tall, adorned always in black with a starched white blouse and a small flower in her hat, Jones was irresistible fodder for the press, whom she rewarded with such outlandish antics as placing working children in the cages of Frank Bostock’s animal show at Coney Island. “Fifty years ago there was a cry against slavery and men gave their lives to stop the selling of black children on the block,” she said. “Today the white child is sold for two dollars a week to the manufacturer.” The coverage intensified as Jones and the children marched east toward their objective, holding aloft signs that read PROSPERITY IS HERE, WHERE IS OURS? and WE WANT TIME TO PLAY. The public also responded, offering sympathy, box lunches, and overnight accommodations.
The effort’s immediate goal proved fruitless—Roosevelt refused to meet with the children or their leader, and his personal secretary later replied to a letter from Jones only to remind her that the states, not Washington, regulated children’s working conditions. But she had succeeded at publicizing the uncomfortable reality that boys and girls were daily sent to work in mines and mills, and denied the pleasures and enrichment of childhood; it was, recalls an historian, “an early moment in a long change of consciousness that led to the abolition of child labor in America.”58 The documentary photographer Lewis Wickes Hine followed Jones, traveling the course of industrial America beginning in 1907 on behalf of the National Child Labor Committee to capture images of the very young engaged in a life of deadening mine and factory work. Many of Hine’s photographs were published in The Survey, a reformist magazine; Americans also came to know the lines written by poet Sarah Norcliffe Cleghorn:
The golf links lie so near the mills,
That almost every day,
The laboring children can look out,
And see the men at play.59
By 1912, thirty-eight states had adopted child labor laws and in 1916 Congress passed the Keating-Owen Child Labor Act, although not until 1941, with the Supreme Court’s upholding of the Fair Labor Standards Act of 1938, would the employment of children younger than sixteen become formally proscribed nationwide.
Keating-Owen was one of many gains for working people achieved during the administration of President Woodrow Wilson. The AFL in particular felt some pride of ownership in Wilson’s agenda. In 1906, determined to make itself heard in Washington, it had submitted a labor “Bill of Grievances” to Congress, and in the presidential election year of 1908 Gompers personally traveled to both parties’ conventions in an attempt to influence them to include workers’ rights in their respective platforms; only the Democrats had agreed to do so. Four years later Wilson was not initially labor’s choice for the White House, but as a candidate he wisely responded favorably to labor’s overtures, partly at the urging of Louis Brandeis, vowing to oversee a new federal initiative on workers’ interests. He entered office with Democrats in control of both houses of Congress and, after his inaugural in 1913, began reaching out to labor as no chief executive ever had, meeting with labor officials to seek their advice and becoming the first chief executive to address an AFL convention. “If securing justice to those who earn their bread in the sweat of their faces constitutes partisanship,” Wilson declared in 1914, “then count me as a partisan of labor.”60
Wilson honored an idea first proposed by William Sylvis and created the Department of Labor, and in alliance with Samuel Gompers brought legislation before Congress that became the Clayton Antitrust Act of 1914, which at long last granted unions relief from abusive injunctions under Sherman, a goal the AFL had pursued doggedly, especially since the unkind setback of Loewe v. Lawlor. Gompers hailed the Clayton Act as labor’s “Magna Carta,” although his enthusiasm proved premature as the law held out several exemptions under which injunctions still could be used, and these were soon exploited. In 1921, the Clayton Act’s attempted insulation of labor unions from Sherman was gutted by the Supreme Court in Duplex Printing Press Co. v. Deering, in which the Court upheld the notion that boycotts were a restraint of trade and were subject to injunctive relief.61
The Wilson years also saw passage of the Kern-McGillicuddy Act (1916), which established workers’ compensation rights, and release of the recommendations of the U.S. Commission on Industrial Relations, a bipartisan panel formed in the waning days of the Taft administration to review the nation’s turbulent labor history and offer recommendations. Wilson assigned Frank P. Walsh, a Midwestern labor lawyer and advocate, to lead the commission’s extensive hearings; its report, published in July 1915, brought robust cheers from labor (and charges of bias from corporate interests), as the document was highly critical of both large capital and the imbalance of wealth in America. Described by labor scholar Melvyn Dubofsky as “perhaps the most radical document ever released by a federal commission,” the report suggested tax reforms and both old-age and unemployment insurance.62 Citing labor unions favorably as democratic checks on “industrial autocracy,” it recommended the federal protection of unions’ rights to organize and bargain collectively. Because many of these proposals would be enacted into law by Congress a generation later, historians often refer to the Wilson commission’s suggestions as a kind of blueprint for the New Deal. This compliment might be paid to the Progressive Era generally for its confidence that the legitimate rights of workers were integral to the survival and integrity of free market capitalism.
ONE OF THE MORE PROMINENT TESTS for “industrial democracy” came in New York City, where the years 1909–1911 brought a series of challenging labor-related crises. The flowering of the International Ladies’ Garment Workers Union (ILGWU) led to a spirited strike by young, mostly female garment workers that became celebrated as “the Uprising of the 20,000,” while a horrific fire at the Triangle Shirtwaist Company outraged the nation, awakening it to the desperate need for workplace safety and resulting in the creation of the New York State Factory Investigating Commission. The period would be characterized by stunning displays of union militancy, innovative third-party attempts at collective bargaining, and a determined push-back against the stranglehold of Lochner, which had denied legislatures and government agencies a role in labor reform.
The ILGWU, founded in 1900, had both male and female members; in New York the men were skilled fabric cutters and tailors who belonged to Local 10, the women shirtwaist (or blouse) makers were members of Local 25. The factories that employed these workers varied greatly in size, from large enterprises with hundreds on the payroll to sma
ll three- and four-person businesses. Given the seasonal nature of fashion retailing and the modest overhead needed to manufacture clothes, many garment businesses consisted of little more than a few sewing machines and a pile of fabric occupying part of a tenement apartment. The industry itself was highly specialized and competitive to the point of being cutthroat. A factory might be charged with manufacturing a single accessory, such as a zipper or a collar, for a particular garment; the smaller enterprises often subcontracted work from larger mechanized factories; thus a manufacturing entity might spring into existence solely to meet the demands of a particular fashion season.
It was the jury-rigged pay system and Byzantine subcontracting practices within the shops that accounted for the name by which these places were known: “sweatshops.” The term was not a reference to the temperature in the workplace (although in summer that may have been appropriate), but rather the management practice of “sweating” labor, assigning specific jobs on lots of garments to ever-smaller shops or units within the same factory. Manufacturing costs were “sweated” downward as at each lower level small shop owners, floor supervisors, and the workers themselves negotiated and renegotiated wages and production deadlines. This system pertained throughout the New York garment industry, leaving many workers vulnerable in regard to wages and, due to the fluctuations in demand, with little job security.
Conditions, even in the larger factories, were far from ideal. Hours of work were typically 8 a.m. to 6:30 p.m., with a half hour for lunch, and possibly a half day on Saturday. Salaries ranged from $8 to $13 per week, with the smaller shops often paying on a piece-rate system that had the effect of pressuring employees to work fast and stay late. Workers were routinely charged for the needles and thread they used, and for electricity; some shops expected them to provide their own sewing machine. Seamstresses were crowded in so tightly they worked literally back-to-back, the work areas were poorly heated and ventilated, bathroom breaks were discouraged or forbidden, and there were myriad rules and a system of fines for tardiness, absenteeism, and other infractions, such as smoking or excessive talking. Verbal and physical abuse was not uncommon. Workers also complained of routine condescension, sexual touching, and harassment. There was no grievance system, and complaining about unfair practices could get one not only fired from one firm but blacklisted from the trade completely. No wonder the women, as had their forebears in the textile mills of New England, referred to their situation as “slavery.”
